Haddad v Secretary of State for the Home Department [2000] UKIAT 00008

An Algerian asylum seeker failed to attend his interview. The Tribunal held that Paragraph 340 of HC 395 cannot be used alone to refuse asylum; the Secretary of State must assess the merits of the claim. Special adjudicators must consider all evidence, not merely whether non-compliance was excused.

Facts

The appellant, a 27-year-old Algerian, arrived in the United Kingdom on 9 March 1995 and claimed asylum. He completed a Statement of Evidence Questionnaire (SCQ) stating he was a young Muslim from Belcourt who had become involved with the F.I.S. through participation in demonstrations, was under constant suspicion, questioned by police, and advised to leave Algeria.

When called for interview in November 1996, the appellant had moved to Scotland without informing his solicitors and failed to attend. He did not return until February or March 1997. On 3 March 1997, the Secretary of State refused his claim, citing that without documentary evidence or interview, little weight could be given to the SCQ, and the failure to co-operate meant he had not demonstrated a well-founded fear of persecution.

Issues

The central legal issue was the correct construction and application of Paragraph 340 of HC 395, which penalises asylum seekers who fail to co-operate with the Secretary of State. Specifically, whether an asylum claim can be refused solely on the basis of non-compliance, and what approach appellate authorities should take when hearing appeals against such decisions.

Judgment

The Convention’s Primacy

The Tribunal emphasised that the Refugee Convention governs the Immigration Rules. Section 2 of the Asylum and Immigration Appeals Act 1993 provides:

“Nothing in the immigration rules … shall lay down any practice which would be contrary to the Convention”.

Interpretation of Paragraph 340

The Tribunal held that it would be contrary to the Convention to remove someone who is a refugee as defined therein. Thus, the Secretary of State must always consider whether the asylum claim is established on its merits:

“Thus he cannot say ‘You have failed to comply therefore you cannot have asylum’. What he can say is ‘You have failed to comply; the result of that failure is that you have not established your claim’.”

To use Paragraph 340 alone to justify refusal would be contrary to section 2 of the 1993 Act and therefore contrary to law.

Role of Special Adjudicators

When an appeal comes before a special adjudicator, they must consider all material, including explanations for failure to comply (which bear on credibility), and decide whether removal would be contrary to the Convention. The special adjudicator should not limit consideration to whether there was a reasonable excuse for non-compliance.

The Present Case

The special adjudicator had only heard evidence directed to the appellant’s explanation for his failure to attend interview, concluding:

“In the circumstances I am satisfied that the respondent was justified in refusing the claim on the basis of non-compliance”.

The Tribunal found this approach wrong. The special adjudicator should have considered all evidence the appellant wished to present to support his claim.

Implications

This starred determination establishes binding precedent that:

• The Secretary of State cannot refuse asylum solely on grounds of non-compliance with Paragraph 340
• All asylum decisions must be made on the merits in accordance with Convention obligations
• Special adjudicators must consider all evidence presented, using non-compliance as a factor affecting credibility rather than a complete bar to the claim
• The decision must be followed by all tribunals and is binding on all adjudicators

The case reinforces the primacy of the Refugee Convention in asylum determinations and ensures procedural failures do not automatically defeat potentially valid claims without substantive consideration.

Verdict: Appeal allowed and remitted to be heard by a different special adjudicator, as the original adjudicator applied the wrong approach by only considering the explanation for non-compliance rather than the substantive asylum claim.

Source: Haddad v Secretary of State for the Home Department [2000] UKIAT 00008